Friday, January 21, 2005

Court Holds Legislatures Cannot Ban Obscene Pornography: How Appealing points out a remarkable district court opinion from the Western District Of Pennsylvania ruling that legislatures cannot ban the distribution of obscene pornography on Substantive Due Process grounds. The case is United States v. Extreme Associates, and the opinion is by Judge Gary Lancaster. The rather convoluted argument of the opinion seems to be this:

1) Stanley v. Georgia, 394 U.S. 557 (1969), recognized a fundamental right to privacy in the private possession of obscene materials.2) A law that imposes a substantial burden on a fundamental right triggers strict scrutiny, especially after Lawrence v. Texas, 539 U.S. 558 (2003) made all morals legislation suspect under the due process clause.3) Regulating obscene pornography places a substantial burden on the fundamental right recognized in Stanley and hinted at in Lawrence, triggering strict scrutiny; and 4) The federal obscenity laws cannot survive strict scrutiny as applied to a case such as this involving obscene pornography.

Among the problems with this approach are the United States Supreme Court decisions rejecting it, specifically holding that Stanley v. Georgia does not apply to distributing or receiving obscene materials. See, e.g., United States v. Reidel, 402 U.S. 351 (1971). Judge Lancaster tries to get around these cases by saying that those are merely First Amendment decisions, whereas he is basing his holding on the doctrine of Substantive Due Process. But I don't think you can just take a First Amendment case like Stanley, sprinkle on a little Lawrence, and turn the mix into a Substantive Due Process right that cannot be substantially infringed without surviving strict scrutiny. Whatever you think about obscenity law, this opinion is pretty clearly inconsistent with existing doctrine. Expect the Third Circuit to overturn it.

Something recently reminded me of a few thoughts I had about this subject a while back, and I thought I'd briefly run through them again.

As I noted on this blog's very first day, there are powerful reasons to care deeply about whom we're letting into the country, and to exclude people who would do us and our institutions harm. More broadly, while I generally support a fairly open immigration policy, I think there are strong arguments on the other side, and they need to be seriously confronted.

Nonetheless, while unlimited immigration can hurt national security, unduly limited immigration can hurt it, too. There's an old joke about who was the greatest German general of World War II; the answer is Dwight Eisenhower. Likewise, many of the scientists on the Manhattan Project were immigrants — Einstein (who didn't work on the Project but whose letter to Roosevelt helped prompt the American nuclear program), Edward Teller, Enrico Fermi, and many more were the obvious names, but there were many others, too.

Our post-war military success was also notoriously helped by foreign-born scientists (e.g., Werner von Braun). But while that was good tactics on our part, our broader relatively open policy on immigration was also good strategy. No-one knew that Eisenhower's ancestors would have a great general as a descendant. My understanding is that many European scientists were let into the U.S. before World War II without specific concern for their military utility. Likewise, when the U.S. let in Albert Wass de Czege, who had fought in the Hungarian Army on the side of the Nazis, it didn't know that his then ten-year-old son Huba would become a general in the U.S. Army, and apparently a gifted military thinker whose work has been of great value to us.

So when we refuse to let some people come here, or refuse to let them stay, we might be protecting our national security. But we might also be hurting our national security, by denying us the services of someone who may one day greatly help our nation — or, worse yet, by letting some enemy country or movement take advantage of his services. And the same can happen even if we alienate the prospective immigrants in other ways, by making the immigration process too much of a hassle, by making it too hard to come to the country to study or to temporarily work, by questioning visitors or restricting them in ways that make them feel insulted, or by generally getting a reputation as a country that's unpleasant to foreigners.

Again, this is hardly an open-and-shut argument for open borders; and I hope that there's some optimal mechanism that will screen out as many bad immigrants or visitors as possible, while at the same time deterring as few good ones as possible. But it's always important to remember that there are national security costs to tight immigration policies as well as national security benefits.

Behind the Numbers:
The WSJ Online today features its second installment of "the Numbers Guy," "a new column on the way numbers and statistics are used - and abused - in the news, business and politics." Today's column: statistics about the dangers of the Internet for kids. An excerpt:

It's an alarming statistic: One in five children has been sexually solicited online. That stat is turning up on billboards and television commercials around the country, driven by an aggressive push from child-protection advocates. In the TV version, eerie music plays as a camera pans over a school playground and then shows a park. A female narrator intones: "To the list of places you might find sexual predators, add this one" — as the image changes to a girl using a computer in her bedroom. The spot ends with the one-in-five stat. It's all part of an ad blitz that has gotten millions of dollars of free media time since its launch last year and is set to continue through 2007. But while the motivation behind the campaign appears to be sound, the crucial statistic is misleading and could scare parents into thinking the danger is greater than it really is.

ACLU Considers Firing Board Members for Criticizing ACLU:
The New York Times has the scoop.

UPDATE: One particularly interesting paragraph notes the reaction of Anthony Romero, the ACLU's Executive Director, to the fact that information about ACLU's privacy-threatening fundraising practices was leaked to the press:

Mr. Romero said he was furious about the disclosure and would consider legal recourse. "We are outraged and appalled that this information was stolen from the A.C.L.U.," he said.

I thought the ACLU called this sort of thing "whistleblowing," not "stealing." Or is it stealing when the whistle is blown on the ACLU?

ANOTHER UPDATE: Reader Ivan Ludmer writes with a critique of this post that I thought I would pass on:

I was appalled when I read your post about the ACLU, but when I read the article you referenced it looked like you may have misinterpreted some items. First, regarding the ACLU considering firing board members, the article says:"...that the subject was added to the committee's agenda at the request of its Oregon affiliate. The committee will then decide whether the entire board should address it over the weekend at its quarterly meeting. "To the best of my knowledge, no current board member supports implementing any such proceedings, and I am aware of many board members who responded by expressing their strong opposition to the
idea," Ms. Strossen wrote. "We will discuss the idea, but I predict
that it will be resoundingly rejected." So while the matter may be 'under consideration,' I think your headline is somewhat misleading. As regards Mr. Romero's fury, the article is ambiguous as to whether he is furious that those questionable fundraising practices were revealed or that information on all those donors was leaked. It's hard to tell from the passage, but it seems plausible to me that he's
furious because he paid a consultant for work compiling donor
information and that consultant revealed the information collected,
not just the fact he had collected that information.

Unfortunately I don't have time to check this through myself, but to be fair I wanted to post the critique and let readers decide for themselves.

Thursday, January 20, 2005

Steven Pinker, author of The Blank Slate, provides some sensible commentary on the Summers controversy to the Harvard Crimson, including: "People who storm out of a meeting at the mention of a hypothesis, or declare it taboo or offensive without providing arguments or evidence, don't get the concept of a university or free inquiry."

Paul Caron (TaxProf Blog) spotlights the UCLA tax faculty. "The UCLA School of Law made one of the largest leaps in the latest US News survey of tax programs, moving from #25 in 2002 to #6 in 2004. In large part, this move was fueled by the unprecedented hiring of three tax professors in 2003, joining the four tax professors already on the faculty to form one of the strongest tax faculties in the country." These really are first-rate people, and I'm proud to have them as my colleagues.

In addition to [SpongeBob's] popularity among children, who watch his cartoon show, he has become a well-known camp figure among adult gay men, perhaps because he holds hands with his animated sidekick Patrick and likes to watch the imaginary television show "The Adventures of Mermaid Man and Barnacle Boy."

Now, Dr. Dobson said, SpongeBob's creators had enlisted him in a "pro-homosexual video," in which he appeared alongside children's television colleagues like Barney and Jimmy Neutron, among many others. The makers of the video, he said, planned to mail it to thousands of elementary schools to promote a "tolerance pledge" that includes tolerance for differences of "sexual identity."

The video's creator, Nile Rodgers, who wrote the disco hit "We Are Family," said Mr. Dobson's objection stemmed from a misunderstanding. Mr. Rodgers said he founded the We Are Family Foundation after the Sept. 11 attacks to create a music video to teach children about multiculturalism. The video has appeared on television networks, and nothing in it or its accompanying materials refers to sexual identity. The pledge, borrowed from the Southern Poverty Law Center, is not mentioned on the video and is available only on the group's Web site.

Mr. Rodgers suggested that Dr. Dobson and the American Family Association, the conservative Christian group that first sounded the alarm, might have been confused because of an unrelated Web site belonging to another group called "We Are Family," which supports gay youth. . . .

On Wednesday however, Paul Batura, assistant to Mr. Dobson at Focus on the Family, said the group stood by its accusation.

"We see the video as an insidious means by which the organization is manipulating and potentially brainwashing kids," he said. "It is a classic bait and switch."

This reminds me of a great T-shirt from 1999, when Jerry Falwell complained about Tinky Winky, one of the Teletubbies: "He is purple — the gay-pride color; and his antenna is shaped like a triangle — the gay-pride symbol." (I should say that this wasn't Falwell's invention; apparently Tinky Winky had become something of a gay icon over a year before Falwell made his claim, see for instance this quote from an English academic.) I saw the shirt in the window of a West Hollywood T-shirt store that catered to a gay clientele, and it said:

In re "blah blah testing yahoo": That's the case name currently present in the listing of "Opinions Issued Today" on the web site of the U.S. Court of Appeals for the Eleventh Circuit.

Update: Someone in the know at the Eleventh Circuit emails:

Howard, I wanted to drop you a quick note in reference to In re "blah blah testing yahoo". The court is in the process of adding a new database for unpublished opinions and a web programmer made a mistake in a script during testing and posted the test opinion to our published opinions instead. The test data has already been removed from the published opinion web site. Thanks for bring this to my attention.

I'd agree that "blah blah testing yahoo" is an accurate description of many unpublished opinions these days.

Yup, that's the sort of error we programmers sometimes make. And it reminds me of something that happened on my first job, 25 years ago this Spring. I started programming early -- at age 10 doing unpaid but real stuff, and at age 12 doing paid work. My first paid job was R&B Enterprises, a real estate company in L.A. My father was working for them at the time, also as a computer programmer, and got me the gig (after they had tried me out for free for several months, which was quite fair).

I was working on an accounts payable system in FORTRAN (an odd language for an accounting system, but there it is), and I like to think I was doing a pretty good job. Of course, after I wrote or changed a program, I had to test it; and there was a special test database which could be used for that, so we wouldn't interfere with the real live data. However, it was easy to accidentally use the real database.

I was testing my change to the invoice entry program, so -- being an APL geek and a Dungeons and Dragons geek -- I entered a "Quote-Quad the Cleric" as a vendor, with what I think was some test address (not my home, if I recall) and a test amount. The program worked well, and I didn't realize I'd accidentally added this to the real database, so I never deleted it.

Several days later, the department manager comes over to tell me that the accounting people were wondering what this invoice was all about, and wanted to check into it before they paid it. I realized I'd entered it into the wrong database, and apologized. I was pretty embarrassed about my sloppiness.

What I didn't fully focus on -- hey, I was 12 at the time -- was that I'd entered an invoice requesting payment of real money on behalf of an utterly fictitious vendor. To accountants, that looks an awful lot like a felony, not just a programmer error. In fact, that's how some embezzlement takes place. Lucky for me, it was "Quote-Quad the Cleric," not exactly the name an embezzler is likely to choose, and a nonexistent address. Still, I can see how some people would have been pretty annoyed . . . . I shudder to think about it now, but I suppose I'm glad that I was mostly oblivious back then.

In any event, I just wanted to say a big "blah blah testing yahoo" to all my fellow programmers, and to the boy I was a quarter century ago.

The Conspiracy just switched to being hosted at PowerBlogs, and I've continued to be very pleased with it. (We've used PowerBlogs to compose posts for months, but we stayed on the UCLA servers until recently.)

Chris Lansdown, Mr. PowerBlogs -- and one reason I like PowerBlogs is that there is a Mr. PowerBlogs who promptly takes care of the few glitches that do exist -- tells me that they've just introduced two new plans aimed at the low volume market: $15 per year for 75 MB/month transfer plus 5 MB disk space, and $25 per year for 200 MB/month transfer plus 10 MB disk space.

If you're starting a small blog, or want to move your existing small blog, that's a really good deal: a cheap service, but reliable and easy to use. Check it out.

Stephanopoulos: You got yourself into a little hot water last month when you said that Judge [sic] Thomas had been an embarrassment to the Supreme Court. Did you go too far there?

Reid: Well, let me say this. I voted against Judge Thomas when he was going to be confirmed as an associate justice of the Supreme Court. Why in the world would I ever vote for that man for chief justice? And probably that's all I should have said.

Stephanopoulos: Because you did go on and say that, you know, you talked about his opinions and said they were poorly written, and you talked about one case, the Hillside Dairy case, where you said his read like an eighth-grade dissertation compared to Justice Scalia's dissent, you said, which was like one from a Harvard graduate. We went back and looked at that, and Justice Thomas's dissent was a simple two sentences, pretty clear to me, and Justice Scalia didn't even have a dissent.

Reid: But here's the problem in the Hillside case. But Justice Scalia did write in that case, and--

Stephanopoulos: But in the majority. Not a dissent.

Reid: Yeah, that's right. But his reasoning was very logical. That's my whole point, and I think that when we have an activist judge like Thomas, who wants to turn precedent on its head, it's not good. And I can give you other cases. The Mitchell case on Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions. But, again, George, I acknowledge what I should have said: I voted against him the first time and I'm gonna vote against him the second time if he comes up.

Stephanopoulos: And leave it at that.

Reid: Yeah.

But Justice Scalia did not write in Hillside. That's not a controversial proposition: Reid's statement is simply false.

As Justice Scalia notes, the "illogic of the Griffin line is plain" and its historical "pedigree is equally dubious." Ante , at 2. Not only does Griffin fail to withstand a proper constitutional analysis, it rests on an unsound assumption. Griffin relied partly on the premise that comments about a defendant's silence (and the inferences drawn therefrom) penalized the exercise of his Fifth Amendment privilege. See Griffin, supra, at 614; Carter, supra, at 301. As the dissenting Justices in Griffin rightly observed, such comments or inferences do not truly "penalize" a defendant. See 380 U. S., at 620-621 (Stewart, J., joined by White, J., dissenting) ("Exactly what the penalty imposed consists of is not clear"); id., at 621 ("[T]he Court must be saying that the California constitutional provision places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive"). Prosecutorial comments on a defendant's decision to remain silent at trial surely impose no greater "penalty" on a defendant than threats to indict him on more serious charges if he chooses not to enter into a plea bargain--a practice that this Court previously has validated. See, e.g., Bordenkircher v. Hayes , 434 U. S. 357, 365 (1978) (finding no due process violation where plea negotiations "presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution"). Moreover, this so-called "penalty" lacks any constitutional significance, since the explicit constitutional guarantee has been fully honored--a defendant is not "compelled ... to be a witness against himself," U. S. Const., Amdt. 5, merely because the jury has been told that it may draw an adverse inference from his failure to testify. See Griffin, supra, at 621 (Stewart, J., joined by White, J., dissenting) ("comment by counsel and the court does not compel testimony by creating such an awareness" of a defendant's decision not to testify); Carter, supra, at 306 (Powell, J., concurring) ("But nothing in the [Self-Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances").[footnote *] Therefore, at bottom, Griffin constitutionalizes a policy choice that a majority of the Court found desirable at the time. Carter compounded the error. This sort of undertaking is not an exercise in constitutional interpretation but an act of judicial willfulness that has no logical stopping point. See Carter, supra, at 310 (Rehnquist , J., dissenting) ("Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present case, and where it will stop no one can know").

We have previously recognized that stare decisis is "at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Agostini v. Felton , 521 U. S. 203, 235 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. For purposes of this case, which asks only whether the principle established in Griffin should be extended, I agree that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant's failure to testify and, therefore, join Justice Scalia's dissent.

[footnote *] I also agree with Justice Scalia , ante , at 6-7, that Griffin improperly relied on a prior decision interpreting a federal statute to inform its resolution of a constitutional question--an error the Court later repeated in Carter . See Griffin, 380 U. S., at 613-614; Carter, 450 U. S., at 300-301, n. 16.

Nothing at all poorly written or illogical about this, it seems to me.

Actually, if Senator Reid had simply said that he disapproves of Justice Thomas because he's too willing to overrule precedent, that would have been a defensible and factually well-founded position; Justice Thomas, more than any other Justice on the Court, has expressed his willingness to overrule quite a few decisions that he thinks are wrongly decided. James Taranto criticizes that position; perhaps a willingness to overrule unsound precedent is often good. But at least the position would be based on accurate assertions, rather than false ones.

Unfortunately, Senator Reid didn't seem to think it was enough to say that he disagrees with Justice Thomas on the merits of certain cases, or that he disagrees with Justice Thomas on how often precedents should be overruled. No, instead he claims that Justice Thomas has been an "embarrassment to the Supreme Court," "his opinions are poorly written," his opinion (in Hillside) is at an "8th grade" level, and now that Thomas's opinions aren't "very logical" (unlike Scalia's).

Instead of pointing to and justifying an honest disagreement about law or jurisprudence, Senator Reid makes unfounded assertions of incompetence -- and backs them up with false statements (about Hillside) and mischaracterizations (that the "whole point" of his preferring Scalia to Thomas is that Scalia's opinions are "very logical" and Thomas's aren't). There should be cause for embarrassment here, but not on the Supreme Court's or Justice Thomas's part.

"The distribution of natural endowments for math abilities for men show the same mean but greater variance than math abilities for women. Therefore, men will be disproportionately represented at the tails of the distribution relative to women. In other words, there are likely to be more men in society than women with unusually poor and below-average math skills."

Some evolutionary theorists have predicted exactly this sort of effect--that because of the nature of mating strategies (e.g., high status men mate much more than average or low-status men, whereas average-status men only mate marginally more than low-status), men may gain adaptive benefit from having greater variance in their genetic abilities, whereas woman benefit from less variance because of the much smaller marginal benefit from extraordinarily high abilities. In evolutionary terms, pretty much any woman would have an opportunity to mate with some man, but not every man will necessarily have the opportunity to mate with a woman, and high-status men mate with many women (prior to the social evolution of monogamy).

I haven't followed the empirical evidence on this closely, and from what I know, the jury is still out on whether this is scientifically accurate. But if it is true, and it is certainly plausible, one prediction of the theory would be that men would be overrepresented both at the very top of competitive professions ("stars" in academia, medicine, chefs, violinists, etc.) as well as being overrepresented in the dregs of society in terms of being intellectually below-average and prone to dropping out of school, prison, substance abuse, violence, and other correlates to that state. By contrast, under the hypothesis, woman will tend to be more consistently average or above-average than men in these same occupations. And it is obviously meaningless and silly to suggest that it is somehow "better" to be overrepresented at the extreme tails and underreprested around the averages than the opposite. I don't know whether it is true that men are overrepresented in the dregs of society, but casual empricism suggests to me that it is a plausible description of the world.

The hypothetical statement, it turns out, is therefore functionally identical to the bastardized interpretation of Summers's statement. But somehow I suspect it would be less outrageous if he had said it in such a manner to denigrate the propensity of men to be losers in the genetic lottery.

Update:

A reader points me to the federal Bureau of Prisons, which, for what it is worth, reports that 93.2% of inmates in the federal prison system are male.

I really don't see why Larry Summers needed to make an abject apologyfor merely suggesting the possibility that, along with other possible factors, including discrimination, innate differences between men and women may play a role in the disparity between men and women going into the sciences. To my knowledge, the subject of the influence of male-female differences on career choices and competencies is widely debated within academia among those who specialize in related fields. And we've certainly come along way from the day when the "experts" thought it was okay to raise a boy born with mangled genetalia as a girl because he would simply be socialized as a girl and never known the difference, given that all male-female differences are "socially constructed" (though I continue to hear the latter line from individuals "educated" at our elite universities [edit: though never from anyone who majored in science]).

I can see the argument that perhaps statistical generalizations will give aid and comfort to those who are inclined to begin with to discriminate against the group in question (even though logically they are given no quarter by the generalization: even if, for example, Jews are less likely than Gentiles to be tall enough to play professional basketball, you don't turn down Dolph Shayes when he shows up at training camp). But I think the outrage expressed goes beyond that. I find that people have difficulty understanding that broad statistical generalizations don't justify leaping to conclusions about individuals. I once heard of a professor who gave a faculty workshop at a major law school in which the speaker pointed out that adoptive and step-parents are far more likely to abuse their children than are natural parents. The speaker noted, of course, that the vast majority of adoptive and step-parents don't abuse their children, it's just that they are far more likely to compared with natural parents. Nevertheless, informed sources tell me that adoptive and stepparents in the audience were gravely and personally offended, and accused the speaker of promoting Nazi-like theories of biological merit. I simply can't understand this logic. How do you get from "the vast majority of adoptive parents don't abuse their children, but are more likely than biological parents to abuse their children" to "you, as an adoptive parent, are under suspicion" for abusing your child? And unlike the continuing nature/nurture debate with regard to women's career choices, my understanding is that the higher rate of abuse among non-natural parents is a documented fact, but that didn't stop the outrage.

On the other hand, because so many people, even very smart law professor-types, do seem to have problems with how statistical generalizations relate to individual cases, maybe Summers did indeed put his foot into his mouth. By even suggesting the possibility that men and women, as broad statistical groups, have different natural interests and talents, Summers was inevitably interpreted by many as saying "maybe it's okay to discriminate against talented women in math and science." Part of being a university president is not just being clever and saying interesting things, but understanding how your public audience, logically or not, will react to what you say.

And finally, an interesting First Amendment question: if a female scientist who is denied tenure at Harvard decides to sue, can use Summers' speech as evidence of Harvard's discriminatory intent?

Harvard President Larry Summers has apologized for his controversial statements about the relative lack of women in math and science. I critiqued the outrage here. Preposterous Universe disagrees and has a good round-up of other commentary here. One interesting aspect of the controversy is that the lack of a written transcript of Summers remarks have left them open to a variety of interpretations. That'll teach him not to speak off the cuff!

Of the comments I've read and received, I also found the following to be particularly interesting:

I took a heavy math load at Smith and it was all taught in a "female" way - the school took the position that women
learn and process differently and thus should be taught differently. Their position was that women have an approach and talent distinct from men and the "male" approach to teaching has shut women out of these fields. I don't know if I buy it, but I do know that I learned
much more in Smith classes than I ever had before.

I don't necessarily have a problem with the gist of what Summers is saying - the question is whether he thinks women cannot be mathematicians/engineers, or if they approach these subjects differently, and what the data actually proves. . . .

Another thing - the woman who said she felt "shallow of breath" - seems very much like a victorian fainting spell. I question whether that reaction is good for women, either. Women before us faught hard to be taken seriously. Don't let one comment knock you down. That
shows no strength at all.

On Nov. 10, [the site operator] got an e-mail from Meta Clow, UCSB's policy and records management coordinator, asking him to "immediately remove our initials from your Web site designation."

Clow said Baron was in violation of California Education Code Section 92000, which designates the "University of California" name and all abbreviations, like UCSB, as property of the state. "Anyone violating this provision," Clow pointed out, "is guilty of a misdemeanor."

I talked to someone at the UC about this, and they say they aren't going after the guy because he's critical of UCSB. (I express no opinion on the merits of the criticisms, by the way.) Rather, they say they generally go after people who use UC in their site names, whatever the site's views -- my sense is that UC is chiefly trying to protect its profits from merchandising of UC-related paraphernelia. And the statute might indeed be read to cover the Dark Side of UCSB site:

(a) The name "University of California" is the property of the state. No person shall, without the permission of the Regents of the University of California, use this name, or any abbreviation of it or any name of which these words are a part, in any of the following ways:

(1) To designate any business, social, political, religious, or other organization, including, but not limited to, any corporation, firm, partnership, association, group, activity, or enterprise.

(2) To imply, indicate or otherwise suggest that any such organization, or any product or service of such organization is connected or affiliated with, or is endorsed, favored, or supported by, or is opposed by the University of California.

(3) To display, advertise, or announce this name publicly at, or in connection with, any meeting, assembly, or demonstration, or any propaganda, advertising, or promotional activity of any kind which has for its purpose or any part of its purpose the support,
endorsement, advancement, opposition, or defeat of any strike, lockout, or boycott or of any political, religious, sociological, or economic movement, activity, or program.

(b) Nothing in this section shall interfere with or restrict the right of any person to make a true and accurate statement of his or her present or former relationship or connection with, his or her employment by, or his or her enrollment in, the University of
California in the course of stating his or her experience or qualifications for any academic, governmental, business, or professional credit or enrollment, or in connection with any academic, governmental, professional, or other employment whatsoever.

(c) Every person violating the provisions of this section is guilty of a misdemeanor.

Nonetheless, as applied to this site, the statute pretty clearly violates the First Amendment. The site is engaged in fully protected speech, not commercial advertising or nonspeech conduct. It doesn't falsely suggest that it's affiliated with UCSB or endorsed by UCSB. It doesn't compete with UCSB for sales of UCSB-licensed products. The site name is constitutionally protected, just as a book called "The Dark Side of UCSB" (even if it's "propaganda" for a "political" or "sociological" "activity") would be protected. See generally Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003), which held that a "sucks" domain didn't violate federal trademark law, but which also stressed that such site names are protected by the First Amendment:

We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech . . . . And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

In fact, Taubman concedes that Mishkoff is "free to shout 'Taubman Sucks!' from the rooftops...." Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.

One of the questions for Lawrence Summers now apparently is why only 4 of 32 tenure-track offers in recent years have gone to women. A seemingly obvious question--I wonder how many offers were made to conservatives/libertarians/Republicans during that same period? If Dan Klein's data on other elite universities is accurate for Harvard (and there is no obvious reason why not), the most likely number is zero (or at least less than 4), notwithstanding the fact that according to last year's election, some 51% of voters appear to be right of center (roughly the same percentage as there are women in America).

More fundamentally, if a faculty of say 100 members only had 2 or 3 women on the faculty, surely there would be little hesitation by many in ascribing this to disparity to pernicious discrimination against women, and that "more needs to be done" (as President Summers is hearing in the current howls of outrage). And, fact, presuming discrimination from such a gross disparity will frequently turn out to be correct, especially in setting such as nonprofit universities which are insulated from market pressures (one reason why unions historically discriminate so much). Certainly the numbers give rise to a presumption that is correct often enough to put the burden on the other side to show that it is being responsible and applying the same standards and efforts to the recruitment of women as men.

But if this is so, why is it that if a faculty has only 2 or 3 conservatives/libertarians, a similar presumption does not apply? Surely such a gross disparity at least gives rise to the same prima facie case of ideological discrimination, doesn't it?

Note that the difference cannot be that sexual discrimination is obvious but ideological discrimination is not, in that the nature of academia is that the centerpiece of the academic exercise is the ostentatious display of ones' ideas, so everyone knows your ideological views.

So, President Summers, while you are looking at faculty diversity issues ...

Update:

It has been pointed out to me that if President Summers is reading, I hope he doesn't take my observation to be evidence of the innate inferiority of conservative and libertarian scholars.

I got an interesting press release from the Chronicle about this, and thought some readers might be interested:

Please join The Chronicle of Higher Education for a live, online discussion about a new book, The Torture Papers: The Road to Abu Ghraib (Cambridge University Press), on Thursday, January 20, at 3 p.m., U.S. Eastern time at http://chronicle.com/colloquy/2005/01/torture.

Bush-administration officials were laying the groundwork for the use of torture long before Abu Ghraib, according to a new book. The book, compiled by university researchers, asserts that a policy to extract information from suspected terrorists became a legal rationale for abuse. In a time of war against ruthless enemies, should the book not have been published? Or does it show the importance of the principles that we are defending?

Karen J. Greenberg, executive director of New York University's Center on Law and Security, is a co-editor, with Joshua L. Dratel, a lawyer, of The Torture Papers. Ms. Greenberg, a former vice president of the Open Society Institute, teaches European studies at NYU and is the editor of the Archives of the Holocaust, a scholarly series. Her research focus is the United States and Europe during World War II. She will respond to questions and comments about these issues on Thursday, January 20, at 3 p.m., U.S. Eastern time. Readers are welcome to post questions and comments now, at http://chronicle.com/colloquy/2005/01/torture.

The options given in the second paragraph seem incomplete -- they leave out the otpion that the book should have been published, but that it is permissible to use at least some forms of physical coercion, perhaps including outright torture, to defend ourselves and our principles. But I hope that the discussion will bring all the possible options out.

New LawProf Group Blog on International Law:
Please welcome to the blogosphere a new law professor group blog, Opinio Juris. The blog covers international law and politics, and is hosted by Julian Ku of Hofstra, Chris Borgen of St. Johns, and Peggy McGuinness of Missouri. A new post this morning is a good place to start: it's a critique of Dean Harold Koh's testimony on the nomination of Alberto Gonzalez for Attorney General, entitled Where Koh's Testimony Went Wrong.

Rehnquist Administers the Oath:
Great to see the Chief administer the oath of office to President Bush at the Inauguration. Rehnquist was walking with a cane, and his voice was clearly weaker and altered somewhat by the medical procedures he has endured, but it was terrific to see him strong enough to do it and do it well. In case you're wondering, the woman who was walking behind the Chief when he made his entrance was Sally Rider, the Chief's Administrative Assistant.

"I want to appreciate those of you who wear our nation's uniform for your sacrifice."—Jacksonville, Fla., Jan. 14, 2005

I take it the supposed humor comes from the ambiguity of "sacrifice": Bush was obviously expressing his appreciation of soldiers, because of their sacrifice. (A bit clunky — "thank" would have been better — but "appreciate" is hardly risible here.) But it might also sound to some people like he's appreciating their wearing a uniform to their sacrifice, which brings up visions of "sacrifice" in the sense of "human sacrifice" and death. Maybe I'm wrong, but it seems to me like the only quibble that Slate can have with Bush's line, unless they're trying to make something out of the substitution of "I want to appreciate" for "I want to thank."

[W]e've got a lot on the agenda. Obviously, winning the war on terror is still on my mind. And I want to appreciate those of you who wear our nation's uniform for your sacrifice and for joining our great country's cause of freedom. (Applause.)

Even setting aside the applause, does this sentence really look that silly in context? Or silly at all?

If you think it does look silly, then you wouldn't fault Slate for omitting the context. But if I'm right that most people would find the quote to be much more sensible in context than out of context, then is the Slate excerpt really fair? Yes, it's humor, but it's a humorous dig that's meant to make a serious statement. The question is whether it makes the statement fairly or not.

UPDATE: Several people suggested that Slate is trying to make fun of the "I want to appreciate" -- Bush, the theory goes, is saying that he doesn't really appreciate the soldiers, but just wants to appreciate them. That strikes me as a pretty weak quibble. "Want to" is a pretty commonplace empty filler; "I want to thank" equals "I thank," "I want to suggest" equals "I suggest," "I want to say that . . ." equals "I say that . . ." which really equals nothing at all. (Naturally, sometimes "I want to" does mean "I want to"; it's generally clear from context whether or not it does.)

Like empty filler generally, it isn't elegant, but it hardly seems laughable. No-one says "Ha ha ha, he said 'I want to thank,' which means he isn't really thanking, but just wants to do it and for some reason can't." Likewise, I think, for "I want to appreciate" -- a much less common phrase, but clearly an adaptation of the more common "I want to thank."

Prof. John Q. Barrett passed along a speech by Robert Jackson — then Attorney General, soon to be a Supreme Court Justice. According to Prof. Barrett, "Jackson wrote (as he always did) his own speech for the occasion [Inauguration Eve 1941], but when the big night came he could not attend due to illness. His friend and colleague, Solicitor General Francis Biddle, instead delivered Jackson's speech at Washington's Mayflower Hotel to a crowd of more than 1,500 guests, including the 531 electors, Cabinet members, Members of Congress and State Governors."

Here's an excerpt; there are parts I may disagree with, but it struck me as thoughtful and eloquent enough to be worth passing along:

It is with diffidence and humility that I greet the ultimate constitutional power in the Republic, the Presidential electors.

Presidential electors belong to a land of constitutional make-believe, rather than to the world of practical politics. At law, it is you only - not the people - who can elect a President. At law you can choose as President any native-born citizen, thirty-five years of age and fourteen years a resident of the United States. Legally, you electors were the only candidates last November. Those presumptuous fellows who were doing all the talking had no legal standing at all, and never could have any except by your leave.

With this vast grant of constitutional power, electors have chosen to become merely the faithful proxies of the people. The last time that an elector broke away and voted for anyone other than his party nominee was way back, I believe before 1800. A disappointed partisan is said to have expressed the sentiment: "I chose him to act, not to think." His doctrine has now become unwritten law.

Presidential electors are about the only officials known to man who have not magnified their offices and reached for more power than the law gives them. They should be preserved if only for this example of self-denial. But there is another reason for keeping them. The electoral system is the alibi and chief consolation of a defeated candidate. He can enjoy the sensation of being a near-President by contemplating that a shift of a few votes in strategic states would have turned defeat to victory. And the winner can point out that an equally trifling change the other way would have made his election unanimous. . . .

In these times when all democracy is on trial, it is a welcome sign of your faith and courage that the subject which is assigned to me is "A Progressive Democracy." That is not a defensive title, and it has no defeatist note in it. It rings with hope and challenge. It is only a progressive democracy that can withstand the pressure of the anti-democratic forces which are making a drive for a "new social order" in the world. Hitlerism in fact derives its greatest incentive and consolation from a belief that our democracy has become stagnant, decayed, and degenerated into what Hitler calls a "plutocracy of the money bags." It is on such assumptions that he wars on democracy and promises what he asserts is a better way of life. It is not easy to translate these abstract generalities into terms that admit of a genuine comparison with our own democratic achievements. . . .

[W]e Americans are too often forgetful of the strides made on our soil, in a stumbling way, perhaps, but with a sure direction toward a more just order. In our early days the fight was made and peacefully won to abolish the law of primogeniture by which all property descended to the first-born male. Then our constitutional Bill of Rights summed up and established the most advanced doctrines of human liberty of the eighteenth century. But we did not stop. We moved on to abolish imprisonment for debt — which reform many said would undermine the whole structure of property, but it didn't.

Then we gradually abolished property qualifications for voting and for holding office and extended the franchise to women. We moved into the field of free education for classes to whom it had never before been available and adopted compensation for industrial accidents and regulation of property used in utility services. Now, under the administration of President Roosevelt, we have brought to reality plans for compensation during forced unemployment, support for dependent old age, wider programs of training for youth, vast projects for new housing, for betterment of farm opportunity, for protection of labor by real collective bargaining, and for higher standards of living and protection against depression.

Of course progress is slow. Of course it is accompanied by what at times seems an unnecessary amount of strife and resistance. But the strife under our system is one of conflicting arguments, not conflicting armies; its weapons are reason, not force. And no regime of dictators or monarchs can show so long, so consistent, or so successful a record of gains by the humble and concessions by the powerful as our democratic system has accomplished in peace and order.

It is not wise so to overstate our case for democracy as to discredit it. We have not, of course, nor has any other nation or system, eliminated all injustice, oppression, and discrimination. We have not yet brought to the individual the degree of security and plenty that science and technology make possible. We have not yet full protection against the cycles and caprices of our economic system.

As you know, I have never hesitated to criticize our existing laws and practice or to strive for their modernization and improvement. I believe in reforming to save. Wise repairs are necessary to protect our structure. But let us not in our criticism overlook the fact that nowhere in the world can comparable opportunity for men be found nor comparable dignity and power in citizenship be seen. When we look at what others have accomplished we may feel our own country to be quite exemplary. It is only when we compare our existing situation with our boundless possibilities, that we are critical.

Progressive democracy is the genius of our people. We have become both great and free by holding both to liberty and to order. We cannot retreat if we would. The instinct that submits its grievances and hopes to public opinion, the sportsmanship that accepts the results of elections is bred in our blood and bone.

No course in our opinion is more fatal for any cause than to resort to violence, to excessive pressures, or to means outside the law. I know of no shorter path to oblivion for any American than even to hesitate in his acceptance of a verdict of the people. In these things is our greatness, our security, and our peace. . . .

So, tonight I toast "A Progressive Democracy," not in a partisan sense, though I am proud that my party and the party of my fathers has contributed more to it than any other. I toast a progressive democracy rather as the genius and achievement of our people. It is not perfection and it has not brought perfection. Indeed, that ideal will probably always retreat as we approach it. I toast democracy not alone for what it is, but chiefly for what it may become; not merely for what it has done, but also for what it makes possible for us and our children to do.

Its road to the future leads through discussion, reasoning, persuasion, experiment, trial and error. Progressive democracy does not lead through violence, revolts, or armed coercion. It leaves our destiny with no limitations except those which our own minds impose and no pitfalls except those that might be dug by a failing faith.

The New York Times weighs in on the Columbia Middle Eastern Studies controversy, and a VC reader sends the following criticisms, among others:
(1) The article repeatedly quotes a crude email from a medical professor as a representation of the pro-Israel view on campus.

(2) Everyone criticizing the professors are described as "pro-Israel," while the Arab professors don't get a similar branding. Dan Miron is referred to as a "pro-Israel professor in the Mealac department," but no professors are singled out as "pro-Palestinian" or "pro-Arab."

(3) Times: 'Professor Massad, a Jordanian-born Palestinian... said nonenrolled hecklers attend his lectures to provoke him. He said he has chosen not to teach his most controversial course, "Palestinian and Israeli Politics and Societies," in the coming semester, because of the emotional toll and because he worries it might jeopardize his tenure.'

VC reader: If Daniel Pipes had a speech and Arab students showed up to heckle him, it would be hailed as an exercise in freedom of speech. Which of course it is, it's just also very rude [Bernstein: I disagree with this; heckling is not simply rude it's disruptive, and therefore, unless explicitly invited, is not a proper exercise of freedom of speech]. And what is a Jordanian-born Palestinian? Wouldn't that make him Jordanian? It's tough to decipher the rules of this made-up nationality.

Bernstein adds: I suspect that Massad decided not to teach this class because as someone who does not speak or read Hebrew, and with the eyes of the world on him, his ignorance of Israeli society would be embarassingly apparent. As I've asked previously, how much can Massad know about Israeli society if he can't speak to Israelis in their native tongue, nor read Israeli books or periodicals in the original?

(4) Times: 'Some pro-Mealac professors say the anti-Mealac students are, in effect, hicks, products of sheltered environments where pro-Palestinian views are absent. One faculty member suggested that there is "no underestimating how ignorant college students are." 'Ms. Shanker, who grew up in the small town of Goshen, N.Y., where, she said, Israel is rarely discussed, said to this point: "I think that argument is ludicrous. We're not idiots."'

VC Reader: Look at the Times not-so-subtly endorsing the description of Shanker as a sheltered hick.

Bernstein: The more I think about this controversy, the more I regret that the aggrieved students have framed the issue in terms of their being "intimidated" or (especially) "offended." I see relatively little merit in these complaints (though claims of intimidation should certainly be investigated, and much more merit in the complaint that Mealac has poor academic standards, and is overly politicized (what do you expect from a department that seems to take its inspiration from the late Edward Said?). The problem, of course, is that the latter criticisms would apply to so many humanities departments at so many major universities that it would be hard to know where to begin.

Iowa State University bans as "sexual harassment" a wide range of speech, including "derogatory or demeaning comments about women or men in general, whether sexual or not." Saying -- even quite accurately -- that women are genetically less likely to be good at certain things may well be seen as "derogatory or demeaning." (After all, it apparently made some biology professors feel like they were "going to be sick," made their "heart . . . pound[]," presumably not in a good way, made their "breath . . . shallow," and made them "extremely upset.")

Of course, saying that men are more likely (whether for genetic or other reasons) to be violent criminals, rapists, child molesters, sexists, or for that matter fools driven by their genital organs would also be "derogatory or demeaning," and thus sexual harassment.

Fortunately for professors who hold these views, "Interpretation of this policy will give due consideration to the principles of academic freedom and freedom of speech." If you weren't a university President, but just a young academic hoping for tenure, would you get much comfort out of this promise of "due consideration," whatever exactly that means?

Since President Vladimir Putin was elected in 2000, a number of Soviet symbols -- including the national anthem and an army flag -- have been restored to use, reflecting widespread nostalgia for Russia's communist years.

But rehabilitation of Stalin, who was denounced after his death in 1953 by the Soviet leadership for encouraging a cult of personality and killing millions of real and imagined opponents, has previously been out of bounds. Statues of Stalin were removed from Moscow's public spaces in the 1960s.

"A monument will be erected to those who took part in (leading the war against Adolf Hitler), including Stalin," Oleg Tolkachev, Moscow's senator in the upper house of parliament, told Ekho Moskvy radio.

Interfax news agency reported earlier that a Stalin monument would also be built in the Belgorod region near the Ukrainian border to mark the Soviet victory against Nazi Germany 60 years ago . . . .

In another sign of Stalin's growing appeal, state television channels have shown a number of prime-time television shows in recent months depicting him in a positive light.

I agree, of course, that Stalin's name shouldn't be erased from histories of World War II (the way that Stalin had erased his enemies from history books). He is to be credited for standing firm against the Nazis, and of course faulted for -- among his many other crimes -- butchering many top military officers in the years before World War II, which surely left Russia more vulnerable to attack. He also let himself be duped by Hitler's assurances of nonintervention.

But it sounds to me like there's more celebration of Stalin here than simple observation that he was the czar when World War II was fought. And that's a bad sign, both for Russia and for the rest of the world.

"Supreme Court To Break Up If Rehnquist Leaves":The Onion has the inside scoop. An excerpt:

Although the associate justices have yet to announce their plans following the dissolution of the Supreme Court, Tomaine said he believes that many will continue on with solo judiciary projects. "I don't think they're ready to give up interpreting the law just yet," Tomaine said. "I wouldn't be surprised if a number of these justices get together and start something very similar to the Supreme Court, but under a different name. I heard that Scalia wants to set up a new organization under the name 'The U.S. Supreme Court featuring Antonin Scalia.' Personally, I think it's very disrespectful to use the name of that honorable institution, but I suppose it's his right."

Harvard President Lawrence Summers has sparked another controversy in a speech at the National Bureau of Economic Research. As the Washington Postreports:

Summers laid out a series of possible explanations for the underrepresentation of women in the upper echelons of professional life, including upbringing, genetics and time spent on child-rearing.

Summers suggestion that genetics, specifically some sort of innate differences between men and women, may play a role sent some audience members over the edge. Again from the Post:

"I felt I was going to be sick," said Nancy Hopkins, a biology professor at the Massachusetts Institute of Technology, who listened to part of Summers's speech Friday at a session on the progress of women in academia organized by the National Bureau of Economic Research in Cambridge, Mass. She walked out in what she described as a physical sense of disgust.
"My heart was pounding and my breath was shallow," she said. "I was extremely upset."

Wait, it gets worse. Summers is apparently a sexist parent too:

Some women who attended the meeting said they felt that Summers was implicitly endorsing the notion that there are genetic differences that inhibit girls from excelling in math and science. They cited a story Summers told about giving his daughter two trucks as an effort at gender-neutral parenting. The girl soon began referring to one of the trucks as "daddy truck" and the other as "baby truck."
The point of the truck anecdote, said Hopkins, a Harvard graduate, seemed to be that girls have a genetic predisposition against math and engineering. "That's the kind of insidious, destructive, un-thought-through attitude that causes a lot of harm," she said. "It's one thing for an ordinary person to shoot his mouth off like that, but quite another for a top educational leader."

Now I'm no expert on gender differences, but unless there has been some blockbuster research breakthrough that I missed, there is substantial uncertainty as to why certain aspects of dominant gender roles are so stable over time, including male predominance in math science. Old-fashioned sexism almost certainly plays a role, but it may not explain everything. Indeed, I think most fair observers would suspect there is more to the story.
This is not a defense of such gender stereotypes -- nor does it say anything about the specific capabilities of any individual man or woman. If it is the case that men are more predisposed to excel at math than women, this does not mean that all men are better at math that all women, that women cannot be successful mathematicians, that women should not pursue math-oriented careers, or that sexism and gender-bias are irrelevant. It would simply mean that statistical gender disparities in given fields are in part the result of genetic predispositions. Genetics provides but one possible explanation for the observed disparity in male and female participation and success in certain fields. But it may not be the whole story either. It is quite possible that certain genetic predispositions are magnified or reinforced by cultural stereotypes and bias.
In the end, the reason why more men than women excel in math and science is an empirical question, and one worthy of careful examination. If genetic differences play a role -- and this is an "if" -- this is something worth knowing. The political and cultural sensitivity of the question should not place it off-limits to scientific examination. At least some in attendance recognized this. One last time from the Post:

"I left with a sense of elation at his ideas," said Claudia Goldin, a Harvard economics professor who attended the speech. "I was proud that the president of my university retains the inquisitiveness of an academic." . . .
What Summers said "is controversial and should be debated," said David Goldston, chief of staff of the House Science Committee, who was also at the meeting. "But there ought to be some place in America where you can have a thoughtful, non-ideological private discussion."

Sam Heldman has returned to the blogosphere. If the past is any guide, I am sure we'll have plenty to disagree about (again). For instance, this post is unfair to Justice Thomas and, based on this report, misconstrues his remarks. But this does not mean Justice Thomas is off the hook (see here.) Welcome back.

Tuesday, January 18, 2005

NYU Journal of Law & Liberty:
The first issue of the NYU Journal of Law & Liberty is now online, featuring articles from a symposium on Friedrich Hayek. Contributors include Richard Posner, Richard Epstein, and many other prominent academics (no one else named Richard, though). You can access all of the articles here.

The Fake Carnivore Debate, RIP:
The Associated Press reports that the FBI has retired its "Carnivore" Internet surveillance tool. (It actually happened about two years ago, but no one knew about it until now.) The Carnivore debate was premised on a profound misunderstanding of Internet surveillance practices. With the Carnivore era over, it's a good time to look back at how the press was able to get the story so wrong.

The FBI created the Carnivore tool around 1999 to create a more privacy-protecting way to conduct Internet surveillance. At that time, commercial surveillance tools were not very protective of privacy; private sector companies have broader surveillance rights than the government, which meant that there was no incentive for private companies to use privacy-sensitive tools when they needed to moinitor their network. The FBI was finding that in rare cases, ISPs could not execute court orders on their own and insisted that the FBI itself had to conduct court-ordered surveillance itself; when it did, FBI agents found that no commercially-available real-time surveillance tools (known as "sniffers") were sufficiently privacy-protective for the FBI to be comfortable using it given the legal constraints it faced.

The FBI's response was to order its tech people to try to improve the filtering technology of commercial tools. The FBI came up with better filter technologies that could ensure that no over-collection would occur. The preexisting commercial filter had been dubbed "Omnivore" within the FBI, and the new filter was much more precise — it only took the "meat" that the tool was designed to capture, and did not collect any evidence beyond that described in the court order. As a result, the FBI dubbed the new privacy-enhanced tool "Carnivore."

Of course, this isn't the story that you heard in the press. Privacy advocates were quick to capitalize on the precious gift the FBI handed them: the name itself was an indictment of sorts, making it easy to create the impression that the FBI had created a monster. Of course, reporters had no idea that Carnivore was actually a privacy-protective version of a common computer tool, and privacy advocates certainly had no incentive to tell them that. As a result, the MSM made a big ruckus about Carnivore and scared everybody into thinking that the FBI had created a powerful surveillance tool.

I was in government at the time the story broke, and was rather astonished by the misunderstanding. In a preview of the debate over the Patriot Act, the MSM got it exactly wrong: it couldn't tell the difference between an effort to protect privacy and an effort to invade it. This led, among other things, to a movement among some civil libertarians urging Congress to impose a moratorium on Carnivore -- a movement that, if successful, would have forced the FBI to use more privacy-invasive tools rather than more privacy-protective ones. (In case you're wondering, government spokespersons tried to explain this at the time and since, but reporters simply did not believe it. When they bothered to report the government's view at all, it was usually at the end of the article in a single sentence clearly designed to leave the impression it was not credible.)

Why did the FBI retire Carnivore? For a reason I explained in an article published two years ago on the Patriot Act (see footnote 247 if you're really interested): in the last few years, the private sector finally caught up with the government. Commercial surveillance tools now have the same privacy-enhancing filter technology that the Carnivore tool has, meaning that the government no longer needs to use Carnivore. Strange, but true.

Faculty Workshop Seminars:
The Harvard Law School website has a page about a law school seminar in which students get to comment on the works-in-progress of top law professors:

This fall, Professors Richard Fallon and Heather Gerken offered more than 30 students a rare chance to review and challenge works-in-progress by some of the country's leading scholars in law. The setting was the Public Law Workshop, a series of seminars attended not just by the enrolled students and visiting scholars but routinely by other HLS faculty members. Fallon and Gerken encouraged participants to probe, prod and troubleshoot the work of established legal scholars from Harvard and other law faculties, to help fine-tune their research and make midcourse adjustments to book drafts and law review articles in the field of public law, which Fallon described as a "broad, vague and not well-defined" area that combines constitutional and administrative law.

This idea has been tried at a number of schools. For example, here's a site for a similar seminar on IP at Boalt. It's a great concept, I think: students get to see what professors really do and participate actively in developing scholarship, while professors get a set of fresh eyes to comment on their works. More schools should do this.

The Pacific Legal Foundation -- a very good conservative and libertarian public interest law firm in California -- is running its Sixth Annual Program for Judicial Awareness Writing Competition, with $9500 in awards. This year's competition includes three essay questions, two on property rights and one on the Comerce Clause. For more information, see here.

Someone suggested the name "magical legalism" for stories about law or lawyers that are basically set in the real world but with some magical or fantastic twist. (If you're that "someone," e-mail me, and I'll update the post to give you credit.)

Whenever someone says "it's a small world" or some such, I respond with something I heard from a former boss:

It's not a small world, it's a small bourgeois clique.

Maybe it's just me, but I think that's a really cool phrase. I've just now tracked down the person who is its apparent originator -- Deborah Chinn -- and I'd thought I'd pass along both the phrase and the credit.

A group promoting an anti-war rally was asked to leave a Broward County park Saturday morning after the park manager said political statements were prohibited on park property. . . . [A] review of the Broward County Code showed no ban on political discussion in parks. . . .

The ACLU and the Green Party were apparently not asked to leave.

Government-owned parks are considered "traditional public fora," in which the government may not restrict speech based on its content (unless the content falls within the narrow First Amendment exceptions, such as deliberate falsehood, obscenity, threats, and the like). The government gets no extra power over such speech because of the government's ownership of the property.

It thus seems pretty clear that the park manager's actions were unconstitutional. It's possible that a city may temporarily rent out its property, including perhaps a park, to a private entity, which could then impose its own rules on this temporarily privatized space; but it seems pretty clear that this isn't what happened here.

My sense is that the government officials who organize events at parks sometimes want to get rid of material that they see as too controversial, since they fear that such material will make the event-going experience less pleasant for some people, and thus drive away potential attendees. (I don't know whether this was this particular park manager's real reason.)

I remember, for instance, a case from when I was clerking, Capital Area Right to Life, Inc. v. Downtown Frankfort, Inc., in which a city-run festival excluded "controversial groups," including a pro-life group and two pro-choice groups. The Kentucky Supreme Court actually upheld this restriction, concluding that the policy was permissible because it was viewpoint-neutral (though the court erroneously called it "content-neutral"). Unfortunately, the Supreme Court declined to hear the case — the Court agrees to hear only 1% to 2% of the cases it's asked to hear, and a refusal to hear the case doesn't mean endorsement of the lower court decision. But Justice O'Connor wrote a dissenting opinion that correctly criticized the lower court's decision. If this matter goes up to the Court again in the future, I'm quite sure that the Court will hold as she urged; and I think that most lower courts (though as we saw in the CARTL case, not the Kentucky Supreme Court) would likewise strike down such policies.

So in any event this sort of exclusion isn't unheard-of — but it's pretty clearly unconstitutional.

"What's Up at the Universities?":
Don Herzog has a very good post about academic freedom and viewpoint diversity in the classroom over at Left2Right. A taste:

Are students entitled to classrooms or campuses where they won't be offended? No way. That's a recipe for turning vibrant free speech into mindless pablum, given how many people have exquisite sensibilities on tons of issues. Not that you need exquisite sensibilities to take exception to some things that get said. There have been some grievous episodes of hate speech on campuses. But every speech code I've ever seen, including the one from Michigan struck down in '89, is impossibly hamhanded. Probably the best bet is to give up on such formal codes and sanctions, not on the Looney-Tunes view that free speech means anyone can say anything however and whenever he likes, but because we can't trust the authorities to make sensible decisions. There are horror stories too about what jittery and spineless university administrators will do to protect students' sensibilities: it was ludicrous to shut this down.

UPDATE: While you're at it, check out the interesting defense of tenure in the comment section.

Because of my recent research on Obesity and Advertising Policy, I have inadvertently stumbled into the periphery of the constitutional regulation of commercial speech. After grazing a little bit in that literature, I was struck by the remarkable shallowness in that literature about the economic analysis of advertising. So out of curiosity, I ran a couple of word tests just to see the degree with which economic analysis is found in commercial speech law review commentary. This is of course far from rigorous, but it may be reflective of the state of the literature.

I searched Westlaw's tp-all database. First, I used the search string "commercial speech" & advertising, and got back 4100 hits. Very crude, but perhaps reflective of the high interest in this topic. Next, I searched for ""commercial speech" & advertising & stigler", looking to pick up references to Stigler's old chestnut, The Economics of Advertising. The search results fell to 87 hits, suggesting that there are over 4000 law review articles that touch on commercial speech and advertising and do not refer to the seminal article in the economics of advertising. Finally, I ran a search to try to pick up the influence of Ben Klein and Keith Leffler's famous article, "The Role of Market Forces in Assuring Contractual Performance", from the Journal of Political Economy, which lays out the "quality assuring" or indirect information theory of advertising. A search for ""commercial speech" & advertising & (klein /s leffler)" generates only 19 hits (almost every one of these articles also cites Stigler), and of those, roughly half were by economists, primarily FTC-influenced law & economics scholars such as Fred McChesney (4 references), Tim Muris, Richard Craswell, Howard Beales, Jack Calfee, and Terry Calvani, most of which are policy-oriented, not disquisitions on constitutional law. The only non-FTC influenced scholar who cites Klein & Leffler in the same article with "commercial speech" twice or more is John McGinnis. A search for ""commercial speech" & advertising & ("Type 1" "type 2" /s error)" makes zero hits, substituting variations on "false negative" and "false positive" raises the result to 46.

Obviously, this is terribly crude. But it is consistent with my casual observation--constitutional law analysis of First Amendment commercial speech doctrine and advertising seems to be largely uninformed by the economic research of advertising during the past two decades.

I leave it to someone else who actually reads and writes in first amendment jurisprudence to tell me whether my crude observations are accurate. Perhaps the ideas are kicking around in the commentary, just with different citations or simply different terminology than that used by economists. So if someone has a better search string that I should use to try to pick up the use of economic analysis in First Amendment Commercial Speech jurisprudence, by all means pass it along to me. But, if it is the case that most discussions of commercial speech lack deep understanding of the economics of advertising, it raises at least two questions in my mind. First, what is the model of advertising that structures the analytical inquiry in this literature?

Second, it may raise an interesting cultural issue about academia--are the cultures of law & economics and First Amendment jurisprudence so different that there is little exchange across them? If so, why? My intuition is that with few exceptions law & econ scholars generally don't do First Amendment, and First Amendment scholars don't do law & econ. The thinking and cultures in these two fields just seem to be so different, and the people drawn into the two fields appear to be so different in intellectual interests, that maybe the cultural gaps are just too deep to make possible many people writing across the gap. Considering that most constitutional law scholars don't even seem to do public choice, which would seem to be an obvious and relevant field to work with, perhaps law & econ is even further out on the periphery of the interest and expertise of such scholars. Similarly, most law & econ people don't do constitutional law, and to the extent they do, they seem to focus more on structural analysis rather than First Amendment or individual rights/liberties analysis.

As I said, I don't do First Amendment myself (there is basically no mention of it in my obesity article), so I certainly am not throwing stones here, I'm just making an observation. Given the thicket of constitutional law and the cost associated with trying to learn all of this constitutional law, I also certainly have no plans to enter this mess myself.

Tuition Increases at State Law Schools:Brian Leiter has the scoop, along with an interesting prediction that state schools will continue to raise their tuitions to stay competitive with private law schools.

Sunday, January 16, 2005

The Pie-Eating Contest:
I often hear lawyers recite an observation about making partner at a large law firm that goes something like this:

Making partner is like winning a pie-eating contest in which the prize for winning is more pie.

The point is that associates have to work long and difficult hours to make partner-- and if they make it, they are rewarded with a job in which they are expected to continue to work long and difficult hours.

My question is, does anyone know who first came up with this line? I found one article crediting "a partner" for it, but I wondered if anyone knew any more details. If you think you know, please leave a comment.

Linda Greenhouse has an article in the Sunday NY Times, Week in Review (p. 5), describing the growing movement for term limits on the US Supreme Court. My colleague, Steve Calabresi, has been discussing this for years, though he wasn't the first to suggest it. And a few years ago, I discussed our proposal for 18-year term limits on the ConLawProf discussion list. Then in 2002, Calabresi and Akhil Amar did an op-ed for the Washington Post on the topic.

Lifetime tenure for judges was "the best expedient which can be devised in any government," Alexander Hamilton wrote in The Federalist No. 78, defending the Constitution's provision for judges to "hold their Offices during good Behavior." Of the wisdom of that proposition, he added, "there can be no room for doubt."

But an ideologically diverse group of legal scholars is now not so sure. Judicial tenure? Definitely. A long one? Probably. But life tenure, which increasingly translates into 25 to 30 years on the bench, extending into extreme old age? When it comes to the Supreme Court, at least, there seems to be plenty of room for doubt, and the doubts are growing.

Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.

The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8. [Although Greenhouse doesn't give her source, these are from my data analysis, though it appears that she misrounded the first figure from 15.12 to 15.2-JL]

In law review articles and commentaries that began as a trickle a few years ago and that now, as these things go, amount to a flood, scholars are questioning whether this is what the Framers had in mind. The modern justices' longevity "has fundamentally altered the practical meaning and implications of lifetime tenure," Professors Steven G. Calabresi and James Lindgren of Northwestern University School of Law have written in an unpublished article.

"We aim to dispel the myth that life tenure for justices is fundamental to our democratic self-government," they write, pointing out that only one state, Rhode Island, provides it for its supreme court judges and that every other major democracy has age or term limits.

The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age - and, predictably, not all will escape - will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.

"The result is a situation of grave proportions needing correction," wrote two other law professors, Paul D. Carrington of Duke and Roger C. Cramton of Cornell. "Unchecked power, the Founders correctly believed, has a tendency to produce a degree of hubris and arrogance among those who exercise that power."

The article goes on from our proposal to discuss some of the details of a proposal by Paul Carrington and Roger Cramton, which is similar to ours, but with a different phase-in. Recently, they circulated a proposal for 16-year term limits, but they have now corrected it to call for 18-year limits, which makes theirs consistent with most other proposals.

Under our proposal (like some others), after a phase-in period a President would appoint a new Justice every odd year. At the end of 18 years, the Justice would go on senior status, and could be assigned to hear cases on other federal courts.

In my data analysis, I found that the problem arose fairly suddenly after 1970. It was not a gradual increase in tenure on the Court over the prior 180 years as human life expectancies rose, though this increase in survival helped make longer tenure possible. Rather, the era since 1970 has been unlike any other, including the immediately preceding 1941-70 period.

Saturday, January 15, 2005

Reader Michael Lorton pointed me to The Chaser, by John Collier, which had apparently been made into a Twilight Zone episode. I liked it — short, readable, ingenious, and cruel.

Also, this gives me another chance to mention my favorite short story about love charms, by one of my favorite short story writers, Rudyard Kipling: The Bisara of Pooree. "[T]o work properly, the Bisara of Pooree must be stolen — with bloodshed if possible, but, at any rate, stolen."

UPDATE: OK, I can't help myself; I have to quote some more, which might help illustrate why I so love Kipling's style:

All kinds of magic are out of date and done away with, except in India, where nothing changes in spite of the shiny, top-scum stuff that people call `civilisation.' Any man who knows about the Bisara of Pooree will tell you what its powers are -- always supposing that it has been honestly stolen. It is the only regularly working, trustworthy love-charm in the country, with one exception. [The other charm is in the hands of a trooper of the Nizam's Horse, at a place called Tuprani, due north of Hyderabad.] This can be depended upon for a fact. Some one else may explain it.

If the Bisara be not stolen, but given or bought or found, it turns against its owner in three years, and leads to ruin or death. This is another fact which you may explain when you have time. Meanwhile, you can laugh at it.

My last post on Alexandra Samuel's proposal for excommunicating political scientists like Condoleeza Rice received this response from Jonah Goldberg saying that he was writing a book about the subject and wanted examples. So I thought that I would add another.

In the 1960s, just AFTER Ronald Coase had done his Nobel Prize winning work in law & economics and AFTER James Buchanan had done his Nobel Prize winning work in public choice, a concerted effort was made by members of their department and the administration at the University of Virginia to drive them out of Virginia. The story has been often told and some reports say that some of the letters and memos showing that this was a conscious effort on Virginia's part survived to be seen by more open-minded members of the department in later years. A run-in with the Ford Foundation helped to crystallize university opposition to the best scholars that the department ever had and among the best ever to teach in any department at Virginia. One view was that they were on the wrong side of history.

Here is a comment that Coase made in an interview in Reason:

They thought the work we were doing was disreputable. They thought of us as right- wing extremists. My wife was at a cocktail party and heard me described as someone to the right of the John Birch Society. There was a great antagonism in the '50s and '60s to anyone who saw any advantage in a market system or in a nonregulated or relatively economically free system.

Since Coase and Buchanan had tenure, they couldn't be fired, but Virginia decided not to make an attractive offer to keep Coase when Chicago offered him a job, though Coase has said that he might well have stayed had they done so. Buchanan was driven out in part by not tenuring his junior colleagues. That this was done a few years after Coase and Buchanan had done their best work is just stunning. Virginia began the 1960s as the most innovative and creative among the world's great economics departments and ended the 1960s as just another pretty good department, no better or worse than a couple dozen other departments in the country.

The college's justification is that apparently some high school students also go to the college part-time, but that seems a pretty poor reason to limit student groups from showing movies on-campus to adult students -- likely the great majority of the audience. (If necessary, the college could insist that the groups card all attendees to make sure they're 17 or over.) Check out the response of the college's lawyer, which disagrees with some of FIRE's allegation but concedes that the college has a no-R-rated-movie policy.

I suspect the policy is constitutional: The college may limit student groups' use of its facilities in viewpoint-neutral ways and the ban on R-rated movies would probably be treated as viewpoint-neutral (though I realize that one could argue the contrary). The ratings aren't legally binding; a theater that lets kids in to R-rated movies couldn't be prosecuted for that. But a college may choose not to open up its classrooms after class hours to such movies.

Also, that the school allowed a seemingly sexually related skit to be performed at a college theater doesn't really undermine the policy's validity. A school can legitimately conclude that R-rated movies are going to be more appealing to underage kids than skits would be, plus the college may feel that it's cost-effective to rely on movie ratings, but too difficult (and too prone to viewpoint discrimination) for the college to make its own judgments about unrated material such as skits.

But that doesn't make the policy sensible or proper for an educational institution. The college may not have aspirations to being a Harvard, but it is a college, in which most of the students are adults.

Community colleges and not just Ivy League schools ought to want to broaden their students' intellectual lives, and to treat their students as grown-ups rather than children. The college's lawyer complains that if the college allowed a broader range of speech, "[o]ne could only imagine the bizarre clubs and activities that would be formed." Heaven forbid that bizarre clubs and bizarre speech be present on college campuses.

The Institute for Humane Studies — which both Sasha and I have been involved in, and which I much like — passes this along:

The Institute for Humane Studies is sponsoring its first essay contest this spring with $5,000 in prizes. . . . The contest is open to all full-time students or anyone 25 years old or younger. Essays must be submitted online by March 1, 2005 and address the following question:

In "The Creative Powers of a Free Civilization," Nobel Prize winner F.A. Hayek posits that only in a truly free society can the creative powers of individuals be maximized. In an essay of 2,500 words or less, please answer the following question:

To what degree are the creative powers of individuals influenced by the structure of the society in which they live? What legal, social, cultural, or educational conditions would be needed to fully realize their creative powers?

who was Attorney General under FDR and whom Roosevelt appointed to the U.S. Supreme Court:

I . . . have been highly desirous of preserving the federalist form and keeping vitality in it. . . . [A]t Nuremberg, it became apparent that until Hitler had broken down the powers of the separate German states and established a completely centralized police administration, he wasn't able to bring about the dictatorship. I think that the philosophy of the Tenth Amendment reserving the undelegated powers to the people or the states ought to be regarded as an essential part of our Bill of Rights, in the sense that our rights are secured and made not merely by the separation of pwoers in the federal government, but by a division of powers between state and federal government.

The decided drift is in favor of a strengthened federal government. I think we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties. Because while the federal government occasionally may make a great advance in the direction of civil liberties that the state governments would not make -- at least in some states -- for many years to come, they can also make a very disastrous reversal and do more harm to civil liberties in one administration than a state government could do in a generation . . . . I think the potentialities of a federal, centralized police system for ultimate subversion of our system of free government is very great.

Philip B. Kurland, Robert H. Jackson, in 4 The Justices of the Supreme Court of the United States, 1789-1969 (L. Friedman and F. Israel eds. 1969), at 2543, 2565 (quoting taped interviews with Jackson prepared for Columbia University's Oral History Project). Many thanks to George Liebmann, who quoted these in an American Conservative Union newsletter, for the pointer.

That Justice Jackson said this, of course, hardly makes it right. Moreover, many modern supporters of constitutional restraints on the federal government may disagree with some of what he said (for instance, his support for "central regulation of commerce," if that phrase is understood broadly). Still, it seems noteworthy that even in the heyday of federal power after the New Deal, one highly prominent New Dealer thought that federalism -- in the sense of constitutional constraints on federal power -- was still very important.

Justice Jackson also wrote, in a majority opinion for the Supreme Court (Eisentrager v. Johnson (1950), overruled on other grounds by Rasul v. Bush (2004)) that the Constitution didn't apply to aliens overseas, reasoning that

If the Fifth Amendment confers its rights on all the world . . ., the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. . . .

It thus seems pretty clear that he took an individual-rights view of the Second Amendment (albeit, of course, in an offhanded aside); if he had seen the Second Amendment as securing only the right of states, or the right of members of state-run National Guard units, then his argument as to the right to bear arms, and his analogy to the First, Fourth, Fifth, and Sixth Amendments, would have been absurd: The Second Amendment would simply be a radically different provision than those, and even if the Constitution did apply to aliens overseas, the Second Amendment would have still been inapplicable by its own nature.